Robert Ewbank v. Andrew Saul

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT DRAKE EWBANK, No. 18-35831
Plaintiff-Appellant, D.C. No. 6:16-cv-00117-JE
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner Social
Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted November 9, 2020**
Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
Robert Drake Ewbank appeals pro se from the district court’s judgment
affirming in part and dismissing in part his challenges arising from the Social
Security Administration’s (“SSA”) recoupment of an alleged overpayment of
Supplemental Security Income (“SSI”) benefits. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291.We review de novo. Dexter v. Colvin, 731 F.3d 977, 980 (9th
Cir. 2013) (dismissal for lack of subject matter jurisdiction); Planned Parenthood
of S. Ariz. v. Lawall, 307 F.3d 783, 786 (9th Cir. 2002) (constitutionality of a
statute). We affirm in part, vacate in part, and remand.
The administrative law judge (“ALJ”) properly denied Ewbank’s claim that
deprivation of his social security benefits for the time he was out of the United
States pursuant to 42 U.S.C. § 1382(f) was unconstitutional. See Califano v.
Aznavorian, 439 U.S. 170, 174-75 (1978) (holding that the limitations set forth in
§ 1382(f) do not violate the equal protection clause or impermissibly infringe on
the right to international travel).
The district court properly dismissed for lack of subject matter jurisdiction
Ewbank’s claim that the SSA discriminated against him in violation of the
Rehabilitation Act because Ewbank failed to exhaust his administrative remedies
as to this claim. See 42 U.S.C. § 405(g); Klemm v. Astrue, 543 F.3d 1139, 1144
(9th Cir. 2008) (explaining the Social Security Act only grants the court
jurisdiction to review final decisions of the Commissioner).
The district court dismissed for lack of subject matter jurisdiction Ewbank’s
claim that the SSA improperly recouped alleged SSI benefit overpayments without
addressing his waiver request after concluding that Ewbank’s action involved only
the ALJ’s September 22, 2014 decision, in which the ALJ found that Ewbank’s
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claim was not properly presented to the SSA field office. However, Ewbank’s
amended complaint challenged the ALJ’s subsequent September 20, 2016 decision
resolving Ewbank’s request for a waiver of this recoupment. Accordingly, we
vacate the district court’s dismissal of Ewbank’s claim that the SSA improperly
recouped the overpayment of benefits, and remand for the district court to consider
in the first instance if the district court has subject matter jurisdiction to review the
ALJ’s September 20, 2016 decision and, if so, the effect, if any, of the 2016 ALJ
decision on Ewbank’s challenge to the SSA’s recoupment of the overpayment of
benefits.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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